Jon Haber

Commentary: Is Manipulating Expert Witness Testimony a New Corporate Tactic?

Jon Haber
The National Law Journal
July 31, 2007

Corporations will stop at nothing to make and protect their profits, even when they put American lives at risk. Then, when they are shown to be knowingly marketing dangerous products, they typically employ every possible tactic to avoid accountability. A recent case in the Illinois courts shines a light on yet another corporate tactic: manipulating expert witness testimony.

Expert witnesses are a critical resource in numerous cases. In fact, courts require litigants to provide expert testimony in virtually every serious case. Negligent corporations, however, have begun using their financial clout in an attempt to buy experts -- even academics. What's more, they have done so behind a veil of secrecy.

In the most recent example, Rago v. Federal Signal Corp., thousands of firefighters who had suffered noise-induced hearing loss from sirens produced by Federal Signal Corp. brought a mass tort lawsuit for restitution from the company in an Illinois state court in Chicago. In the course of defending Federal Signal, the company's lawyers pointed to an academic study published in 2005 by Dr. William Clark, a professor at Washington University in St. Louis School of Medicine and chair of the school's audiology department. The study concluded that firefighters were not at risk of hearing loss from sirens, despite their exposure to high levels of occupational noise. What the lawyers, and the study itself, did not say was that Clark had long been a paid consultant to Federal Signal and had helped the company defend other hearing-loss litigation while he was conducting his research. In fact, the "study" was based on data Federal Signal itself had collected and provided to Clark.

Federal Signal did all it could to hide its role in the study, even when it was required under standard court procedures to disclose its involvement in research. When the firefighters' lawyers learned of the company's cover-up, they forced the company to turn over an additional 1,400 pages of data and analysis that it had previously held back. As a punishment for the deception, the judge, this past February, barred the company from using the study in court, barred Clark from testifying and ordered Federal Signal to pay the firefighters $50,000 in attorney fees for the additional time their lawyers had to spend to force the company to come clean.

Rago v. Federal Signal is neither the first, nor likely the last, example of a corporation attempting to surreptitiously buy expert opinion. Philip Morris USA Inc. engaged in a concerted attempt to buy academic support to challenge the link between secondhand smoke and sudden infant death syndrome. The company sought and paid an author, guided his writing and asked him to change his conclusions in order to undermine accepted scientific theories. Philip Morris' internal "impact assessment" of the project stated that it "should provide the necessary scientific background for a policy on the acceptability of smoking around children."

Similarly, in 1994, Exxon was ordered to pay several billion dollars in punitive damages to those affected by the massive Exxon Valdez oil spill. When Exxon appealed, it referred to a new line of academic thinking that sought to restrict the size of punitive damages. What the company did not reveal was that it was academic work for which it had paid handsomely. Exxon had financed a systematic campaign to engineer favorable research into juries and damage awards in order to influence the court proceedings. Though Exxon cited these academic works in its court papers, it did not disclose its role in funding or manipulating them.

CONCERN WITHIN ACADEMIA

Corporations have long used academics and other experts to make their case. But the pattern of concealing financial ties has come under increasing scrutiny during the last several years. Corporations' financial backing and, perhaps even more serious, their influence over the research itself, has often gone undisclosed. The trend has prompted serious concern within the academic community. For example, Dr. Catherine D. DeAngelis, editor of the prestigious Journal of the American Medical Association, recently issued a warning to the dean of Harvard Medical School after Harvard researchers failed to disclose relevant financial ties to drug companies in three separate studies they submitted to JAMA for publication. JAMA now requires that every industry-sponsored study be submitted to an independent academic for statistical analysis. Astonishingly, some corporations have responded by prohibiting their researchers from submitting papers to JAMA -- another example of putting profits ahead of people.

Federal Signal, Exxon and Philip Morris are just the most prominent examples of companies that have engaged in furtive attempts to manipulate science for their own ends. Corporations must not be allowed to taint our court system in their efforts to evade accountability. We must work to ensure that people have a fair chance to receive justice through the legal system when they are injured by the negligence or misconduct of others -- even when it means taking on the most powerful corporations.

Jon Haber is the chief executive officer of the American Association for Justice.
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